This Guide outlines the changes to the Access to Information Act (ATIA), the Privacy Act (PA) and the Personal Information Protection and Electronic Documents Act (PIPEDA) as they relate to the Public Servants Disclosure Protection Act (PSDPA).

Encouraging disclosures and protecting reputations

Protection of disclosure records, including the identity of the discloser and witnesses, is critical to ensuring that public servants and all persons involved in a disclosure process feel protected in reporting possible wrongdoing.

The changes made to the ATIA, PA and PIPEDA are designed to offer broad protection for records containing information obtained and created in relation to a disclosure or a disclosure investigation.

To the extent possible, the PSDPA also protects the reputations of persons alleged to have done wrong, but who are cleared of any wrongdoing.

Changes to the Access to Information Act (ATIA)

The ATIA now contains mandatory, permanent exemptions related to the PSDPA.

For federal public sector organizations subject to the ATIA, records containing information that was created for the purpose of making a disclosure or in the course of an investigation into a disclosure under the PSDPA are permanently protected and cannot be released in response to ATIA requests.

For the Public Sector Integrity Commissioner (PSIC), records containing information that was created or obtained in the course of an investigation into a disclosure under the PSDPA or an investigation commenced under section 33 of the PSDPA are similarly protected. This includes records provided by the person who made the disclosure or provided information to the PSIC.

In addition, the PSIC must invoke a mandatory exemption for any information received by a conciliator in the course of attempting to reach a settlement of a reprisal complaint, unless the person who provided the information consents to its disclosure.

To balance the new ATIA exemptions, if wrongdoing is found after an investigation, the PSDPA requires public reporting. The reports provide an account of the wrongdoing, the recommendation for corrective action, if any, and the response of the chief executive. For further information, please see the document, “Guide to Organizational Public Reporting Obligations under the Public Servants Disclosure Protection Act.

Information related to a disclosure or an investigation by the PSIC must be protected under the ATIA even if it was disclosed during the investigation process or reported publicly under the PSDPA. The protection under the ATIA includes the protection of information reported publicly in the case of a founded disclosure, for example, in the PSIC’s reports to Parliament in cases of founded wrongdoing. The ATIA, however, does not protect information received by a conciliator in attempting to reach a settlement of a reprisal complaint if the person who gave the information to the conciliator consents to its disclosure.

Changes to the Privacy Act (PA)

The PA now contains mandatory, permanent exemptions related to the PSDPA:

For federal public sector organizations subject to the PA, personal information that was created for the purpose of making a disclosure or in the course of an investigation into a disclosure under the PSDPA is permanently protected and cannot be released in response to requests for personal information made under the PA.

For the PSIC, personal information that was created or obtained in the course of an investigation into a disclosure under the PSDPA or an investigation commenced under section 33 of the PSDPA is similarly protected. This includes personal information provided by the person making the disclosure.

Pursuant to the PA, allegations made about an individual are the personal information of that individual, and normally may be released to that individual on request, subject to the exemption and exclusion provisions of the PA. Nevertheless, requests for personal information related to a disclosure or disclosure investigation must be refused in accordance with the exemptions under the PA as they pertain to the PSDPA. This helps to ensure that persons making disclosures and witnesses will be confident that their identities can be kept confidential should a formal request be made under the PA.

It is important to note, however, that the PSDPA requires that information related to a disclosure or disclosure investigation be protected subject to the principles of procedural fairness and natural justice. Generally, a person facing an allegation of wrongdoing has the right to be informed of the allegations, as permitted by section 27(2) of the PSDPA. Satisfying this requirement may not require that the person be informed of the identity of the person who made the initial disclosure or the identity of other witnesses, if it is not necessary to describe the substance of the allegation adequately. The amount of personal information provided during an investigation under the PSDPA will have to be assessed on a case-by-case basis.

The identity of the person making a disclosure and other personal information related to the disclosure or the investigation by the PSIC must be protected under the PA, including if it was acquired during the investigation process. This also includes the protection of information reported publicly in the case of a founded disclosure, for example, in the PSIC’s reports to Parliament in cases of founded wrongdoing.

Organizations subject to PIPEDA may refuse to give an individual his or her own personal information if that information relates to a disclosure made under the PSDPA.

In accordance with PIPEDA, allegations made about an individual are the personal information of that individual, and normally may be released to the individual on request, subject to the exemption and exclusion provisions of PIPEDA. Nevertheless, a request made under PIPEDA for personal information related to a disclosure or disclosure investigation may be refused. This helps to ensure that persons making disclosures and witnesses will be confident that their identities can be kept confidential to the extent possible and in accordance with legal principles.